Alean Hester FAUST, Administratrix of the Estate of Charles Lonnie Faust, deceased, Tommy Bennett, Curtis L. Muldrow, Appellees, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant, and United States of America, Defendant; Alean Hester FAUST, Administratrix of the Estate of Charles Lonnie Faust, deceased, Tommy Bennett, Curtis L. Muldrow, Appellees, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Defendant, and United States of America, Appellant, 721 F.2d 934

HARRISON L. WINTER, Chief Judge: The decedent of the plaintiff administra-trix was killed and the two other plaintiffs were injured when, on the night of December 11, 1977, the decedent’s motorboat collided with a steel guide cable used by the South Carolina State Highway Department (Highway Department) in the operation of a cable ferry across a canal in the Atlantic Intracoastal Waterway. Plaintiffs sued the United States and Highway Department in admiralty alleging that they were joint tortfeasors in the operation and maintenance of the ferry.

The district court gave judgment to the administratrix against both defendants for $499,069.00 and to the other plaintiffs for $18,000.00 and $5,000.00, respectively, with prejudgment interest. Both defendants appeal. We reverse. We conclude that there was no negligence on the part of the United States, and it is entitled to judgment as a matter of law.

While we conclude that there may have been negligence on the part of the Highway Department, as well as contributory negligence on the part of the decedent and the other plaintiffs, we think it necessary to reexamine our decision in Chesapeake Bay Bridge and Tunnel District v. Lauritzen, 404 F.2d 1001 (4 Cir.1968), on which the liability of Highway Department was predicated. We conclude that Laurit-zen has been sufficiently undermined by subsequent Supreme Court decisions that it should no longer be followed.

As a consequence we conclude that under the Eleventh Amendment Highway Department is not amenable to suit and we reverse the judgment against it. I. In the view we take of the case, the facts need not be elaborately stated. On the night of the tragedy — a Sunday, the decedent, Charles Lonnie Faust, together with plaintiffs, Tommy Bennett and Curtis L. Muldrow, went fishing in Faust’s eighteen-foot open inboard/outboard motor boat in unfamiliar waters, near Georgetown, South Carolina.

They launched the boat from a public landing on the Sampit River to which they had been directed and they fished in an area to which they were taken by a professional fisherman who accompanied them after they encountered him on the water in his disabled boat. After fishing for several hours and collecting shellfish, they returned to their guide’s disabled boat where he left them. He gave them directions how to return whence they had come, but because they erroneously identified their point of origin, he directed them to a landing in close proximity to one of the landings of the South Island ferry.

In addition to no familiarity with the waters of the area, they neither had, nor had they consulted, any maps or charts. The South Island ferry is a cable operated ferry, operating across a canal of the Intracoastal Waterway. Since 1940, it has employed a separate % inch steel guide cable. When not in operation, the ferry is moored on the east or island side of the canal and the guide cable is slack and rests on the bottom. When the ferry is in operation the guide cable is raised to four feet above the water’s surface.

Prior to December 11, 1977, there had been a number of collisions between boats and the ferry cable. There was an elaborate system of warnings about the hazard of the ferry and the cable. When the ferry is in operation various warning lights and sirens are activated. Two signs, having flashing red lights and flood lights, were posted on either side 500 feet northeast of the crossing, the direction from which Faust approached, as well as south of the crossing. The crossing is approximately 300 feet wide.

The signs variously advise that there is a cable ferry 500 feet ahead, that the cable is above water when the ferry is in operation and that mariners should stop on red. The sides of the ferry, painted with luminous paint in a black and orange striped pattern, also bear signs reading “Cable Ferry — Stop on Red”. Some of these warning devices were installed after the litigation in Doyle, see supra note 1, when a district judge voiced sharp criticism of the hazard. Other warning devices recommended by the Corps of Engineers had not yet been established.

On December 11, the United States Corps of Engineers was also pressing for replacement of the ferry and South Carolina was in the process of procuring a self-propelled ferry. After the guide was returned to his disabled boat, Faust entered the Intracoastal Waterway and proceeded down the middle of the channel at a planning speed of 15-25 m.p.h. It was dark; the weather was good; and the tide, against which Faust was proceeding, was rising. The ferry was in operation, but the Faust boat passed the warning signs without decrease in speed and struck the cable. Faust was killed and his passengers injured.

Apparently the speed of the boat drowned out the sirens which were sounding. II. Liability of the United States The district court found liability on the part of the United States. Since it was an uncontested fact that the cable ferry operated in navigable waters of the United States, the district court reasoned that the United States was “charged by law with various responsibilities and duties concerning the cable ferry” which the United States failed to carry out.

Specifically the district court held that the Coast Guard failed to carry out its duty under 14 U.S.C. § 86 to mark properly an obstruction in navigable waterways. The district court also held that the Coast Guard breached its duty, imposed by case law, to warn mariners of hidden dangers to navigation. The Corps of Engineers, so the district court ruled, had a duty under 33 U.S.C. §§ 401 et seq. to remove obstructions to navigation in the navigable waters which it failed to perform when it took no steps to ensure that Highway Department had supplemented its warning system or removed the cable.

Finally, the district court appeared to conclude that the Corps of Engineers had breached its common law duty to remove obstructions or to require that they be properly marked. We do not doubt that if the United States, through the Coast Guard or the Corps of Engineers, breached some duty imposed by statute or the common law by failing to mark the cable adequately or to require its removal, plaintiffs would have a meritorious cause of action against it under the Suits in Admiralty Act (SIAA). See 46 U.S.C. § 742; Lane v.

United States, 529 F.2d 175 (4 Cir.1975) (Coast Guard’s failure adequately to mark wreck is actionable under SIAA). The question however, is to determine if the Coast Guard and Army Corps of Engineers’ actions or inaction violated some statutory or common law duty. As a source of such a duty, plaintiffs and the district court cite two statutes — 14 U.S.C. §§ 81 and 86, which empower the Coast Guard to establish aids to navigation and mark obstructions, and 33 U.S.C. § 403, which requires Army authorization of structures placed in navigable waters — and the common law duty, recognized in Indian Towing Co. v.

United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), of one who undertakes to warn the public of a danger to do so in a careful manner. We consider these sources seriatim. A. 14 U.S.C. §§ 81, 86

Section 81 states, in pertinent part, that “[i]n order to aid navigation and to prevent disasters, collisions and wrecks of vessels ... the Coast Guard may establish, maintain, and operate: (1) aids to maritime navigation required to serve the needs of ... the commerce of the United States ...,” while § 86 states, insofar as pertinent, that “the Secretary may mark for the protection of navigation any sunken vessel or other obstruction existing on the navigable waters ... in such manner and for so long as, in his judgment, the needs of maritime navigation require.” It further provides that the Secretary may charge the owner of the obstruction for costs incurred in marking it.

Prior to 1965 § 86 was phrased in mandatory terms, and the Army was charged with marking abandoned wrecks. We have twice had occasion to rule on the duty imposed on the Coast Guard by these two sections. In Lane v. United States, 529 F.2d 175 (4 Cir.1975), we held that the United States could be held liable for damage caused to a pleasure boat by a collision with a poorly marked sunken barge. We concluded that while, after the 1965 amendments, the duty to mark was not mandatory, the

section “at least, requires care and prudence to mark submerged wrecks which constitute substantial hazards to navigation.” Id. at 179. In Magno v. Corros, 630 F.2d 224 (4 Cir.1980), on the other hand, we ruled the United States could not be held liable for the Coast Guard’s alleged failure adequately to mark a dike. We reasoned there that the duty to mark imposed by that

section did not encompass things, such as the dike, which were placed as an aid to navigation and which were authorized by Congress. We concluded that “§ 86 is inapplicable to a structure ... which was constructed for a proper governmental purpose.” Id. at 228. The cable, of course, is a purposefully constructed and not an accidental obstruction, and thus under our reasoning in Magno the Coast Guard was under no duty to mark it under § 86. There could therefore be no breach of a duty to mark on the part of the United States.

B. 38 U.S.C. § 403 This statute prohibits the construction of any structure in a navigable river “except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army.” In fact a permit for operation of the ferry had been issued on condition that there be certain markings. We do not think that the United States may be held liable for permitting an obstruction under § 403.

We know of no decision holding the United States liable in tort on the basis of an alleged failure by the Corps of Engineers to fulfill its statutory mandate to regulate obstructions placed in the navigable waterways. The assumption by the government of authority to regulate a particular activity should not render it liable in tort when it fails to exercise that authority to protect an individual from injury. Zabala Clemente v. United States, 567 F.2d 1140 (1 Cir.1977), cert. denied, 435 U.S. 1006, 98 S.Ct. 1876, 56 L.Ed.2d 388 (1978).

At common law an undertaking to protect a person from harm does not give rise to a duty enforceable in tort unless the undertaking is in satisfaction of an antecedent legal duty, or increases the risk of harm, or the person relies to his detriment upon the undertaking. Restatement of Torts 2d § 323. Thus, at common law the undertaking by the United States to regulate obstructions in navigable waters does not, standing alone, give rise to a duty to do so enforceable in tort.

Moreover, particularly strong reasons exist for not imposing such a duty upon the government, for that would deny to it the power to determine how best to allocate scarce resources to satisfy the wide range of ambitious regulatory programs which the government has undertaken. Gercey v. United States, 540 F.2d 536, 538-39 (1 Cir.1976). It has authoritatively been held that the exercise of the function to issue permits is an unreviewable discretionary function. In California v.

Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981), the Supreme Court held that the provisions of the Rivers and Harbors Act, § 401 et seq., did not provide a private cause of action to challenge the construction of an unpermitted structure in navigable waters. Similarly, several courts have held the grant of a permit thereunder to be an unreviewable discretionary function. See Gemp v. United States, 684 F.2d 404, 408 (6 Cir.1982) (decision by Corps to post warnings at dam is discretionary); Boston Edison Co. v.

Great Lake Dredge & Dock Co., 423 F.2d 891 (1 Cir.1970) (decision by Corps to dredge river is discretionary, and so is not actionable under the Tort Claims Act); Lynch v. U.S. Dep’t of Army Corps of Engineers, 474 F.Supp. 545, 550, 552 (D.Md.1978), affd without opinion, 601 F.2d 581 (4 Cir.1979).

If the issuance of the permit is unreviewable, we cannot see how the United States can be held liable for having issued a permit to allow a hazardous obstruction to exist, because of necessity such liability would involve a determination either that the permit should not have issued, or, once issued, that it should have been revoked. We thus conclude that the United States could not be liable in this case under 33 U.S.C. § 403. C.

Common Law We are aware of no authority and counsel has cited none which holds that the United States may be held liable on a common law tort theory of failure to maintain safe conditions on navigable waters which it “owns.” Of course, in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), the United States was held liable for damage sustained by a vessel which ran aground after a lighthouse light operated by the Coast Guard was negligently allowed to go out.

The Supreme Court stated that once the Coast Guard chose to operate the light and engendered reliance on the guidance afforded by it, it was obligated to use due care to ensure the light was kept in operation. Id. at 69, 76 S.Ct. at 126. The principle laid down in Indian Towing requires no more than that the government not injure sailors or boaters by inducing reliance on misleading navigational aids. It imposes no general duty upon the government to ensure navigable waters are safe or to provide warning devices. In Magno v.

Corros, 630 F.2d 224, 228 (4 Cir.1980), for example, we held that the Coast Guard could not be held liable under Indian Towing for failing to provide additional lighting or marking on a dike so long as the light it provided worked properly and did not mislead the boater. Similarly, in Chute v. United States, 610 F.2d 7, 13-15 (1 Cir.1979), it was held that allegedly inadequate warning devices were not actionable under Indian Towing so long as the devices provided worked properly.

Recognizing this limitation upon the liability of the government at common law, plaintiffs suggest Indian Towing is applicable here because lights placed on the ferry at the government’s suggestion distracted them from the cable and thus misled them. When by its remedial measures the government misleads a boater and that causes an accident it is actionable under Indian Towing. We recognized that possibility in dicta in Magno, and at least one court has so held. Donily v. United States, 381 F.Supp. 901 (D.Or.1974) (United States liable for misleading weather information provided by Coast Guard).

See also De Bardeleben Marine Corp. v. United States, 451 F.2d 140 (5 Cir.1971) (United States would be liable if it negligently furnished misleading charts to navigator). In the instant case, the district court found that the safety devices installed “actually increased the risk caused by the cable ferry,” 527 F.Supp. at 1044, presumably because the flashing lights of a landed ferry would fool a boater into believing no danger existed. Id. at 1031-32. This, however, is no basis for finding liability on the part of the United States since it was not directly responsible for the safety devices installed.

In sum we do not perceive any basis for saying that the United States breached or failed to carry out any duty imposed on it by statute or by common law so as to render it liable in this case. Accordingly the judgment against the United States will be reversed. III. Liability of South Carolina The district court found South Carolina liable, but we conclude that the Eleventh Amendment insulates it from a judgment rendered by a federal court. It would not be amiss for us to explain why we decide this aspect of the case on this ground.

From our examination of the record, we have no doubt that were South Carolina amenable to suit it should be held liable to some extent. It argues that plaintiffs are barred from recovery by their contributory negligence. The district court found that plaintiffs, and especially the decedent, were not guilty of contributory negligence as a result of the consumption of alcoholic beverages and that finding is not clearly erroneous.

But there was other evidence of negligence — operating at excessive speed at night, without lights and without charts, in unknown waters — and we have no doubt that there was some negligence on the part of decedent and perhaps the other plaintiffs. This case, however, is one in admiralty where the doctrine of comparative negligence obtains, and we are unable to agree that negligence on the part of plaintiffs and the decedent was the sole proximate cause of the collision. It is appropriate therefore that we consider an aspect of the case on which we can reach a judgment. In addition, Edelman v.

Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 1362-63, 39 L.Ed.2d 662 (1974), states that an Eleventh Amendment- defense is in the nature of a jurisdictional defense that may be raised at any time. Thus by deciding the case on this ground, we do no violence to the established canon that courts should not reach or decide constitutional issues except where they cannot be decided on non-constitutional grounds. A state’s defense under the Eleventh Amendment can, of course, be waived, and the district court concluded that under our decision in Chesapeake Bay Bridge and Tunnel District v.

Lauritzen, 404 F.2d 1001 (4 Cir.1968), South Carolina had impliedly waived its right to immunity and consented to suit when it undertook to operate a ferry on a navigable body of water subject to federal regulation. We agree that application of the holding in Lauritzen to the facts of this case would result in that conclusion, but the decision in Lauritzen embodied a reading of Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), which later Supreme Court decisions have shown is untenable. It follows therefore that Lauritzen is not a viable authority and should no longer be followed.

In Lauritzen, we said, quoting Parden, 377 U.S. at 196, 84 S.Ct. at 1215, that “when a state leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation.” We applied that language to mean that when Virginia constructed and maintained a bridge-tunnel spanning the Chesapeake Bay at the Virginia capes — clearly navigable waters of the United States — Virginia consented to be sued for damages sustained from a submerged obstruction in the waters.

The sweep of the language of Parden on which we relied has been sharply curtailed by two later decisions. In Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), the Eleventh Amendment question which was decided was whether Illinois had waived its Eleventh Amendment immunity and consented to be sued by participating in a federal-state program of aid to the aged, blind and disabled. Reliance for an affirmative answer was placed, inter alia, on Parden.

The Court, however, said that a state waives its immunity by entering an area subject to congressional regulation only where the governing statute required such a waiver “ ‘by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.’ ” Id. at 673, 94 S.Ct. at 1360, quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909).

With respect to Parden, the Court said that its rationale was that it “involved a congressional enactment which by its terms authorized suit by designated plaintiffs against a general class of defendants which literally included States or state instrumentalities”. Id. 415 U.S. at 672, 94 S.Ct. at 1360. Even before Edelman was decided, in Employees v.

Missouri Public Health Dept., 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973), the Court held that the Eleventh Amendment barred suit by state employees against the State of Missouri for overtime compensation under the Fair Labor Standards Act, because that Act, although it obligated Missouri to pay minimhm wages and overtime, did not expressly repeal a state’s Eleventh Amendment immunity.

Parden was again limited to the fact that the state (Alabama) conducted an activity normally carried on by private persons and corporations and thus brought itself squarely within the terms of the statute authorizing the proprietor to be sued. There is no claim in this case that there is any federal statute allowing a private cause of action against states for obstructing navigable waters or negligently operating a ferry. South Carolina has no state tort claims statute. All there is is the fact that South Carolina operates a ferry in navigable waters.

But under Parden, as explained by Edelman and Employees, this is not an implied waiver of Eleventh Amendment immunity and consent to suit, notwithstanding Lauritzen to the contrary. Since we are obliged to follow Edelman and Employees, we must conclude that we should not follow Lauritzen and that there was no waiver of Eleventh Amendment immunity here and the judgment against South Carolina must be set aside. We add only that our conclusion on this point is in accord with every other court of appeals which has considered this issue. See, Karpovs v. Mississippi, 663 F.2d 640 (5 Cir.1981); Riggle v.

California, 577 F.2d 579 (9 Cir.1978); Williamson Towing Co. v. Illinois, 534 F.2d 758 (7 Cir.1976). See also, Red Star Towing & Transp. Co. v. Dept. of Transp., 423 F.2d 104 (3 Cir.1970). REVERSED. . One such collision was litigated in Doyle v. United States, 441 F.Supp. 701 (D.S.C.1977). There recovery was sought from both the United States and South Carolina. South Carolina settled the suit, and the district court held the United States liable under 14 U.S.C. § 86 for failure to mark the cable adequately. Subsequent to that case, some additional warnings were established. .

The SIAA permits suits in admiralty against the United States “In cases where ... if a private person or property were involved, a proceeding in admiralty could be maintained .... ” That is, it renders the United States liable to suit to the same extent that a private person would be liable. Lane, 529 F.2d at 179. . In Doyle v. United States, supra note 1, liability of the United States in a similar accident was predicated upon this provision. . The United States may be held liable under the Rivers and Harbors Act if it places an obstruction in navigable waterways in violation of its provisions.

See, e.g., Norfolk & Western Co. v. United States, 641 F.2d 1201 (6 Cir.1980); The Snug Harbor, 40 F.2d 27 (4 Cir.1930). . The parties concede that Highway Department is an agency of the State of South Carolina and a suit against Highway Department is a suit against the state. . The Amendment reads as follows: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.